[RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thruwhat date
Neil B. Shoter
NShoter at shutts.com
Thu Feb 9 10:26:31 PST 2012
At least this is the law (as I understand it) in Florida, but may differ in other states. I routinely see lease forms from out of state landlords that have both lease termination with ability to collect accelerated rent as an option.
Neil B. Shoter
Partner / LEED Accredited Professional
________________________________
Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
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-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, February 09, 2012 12:40 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thruwhat date
Thanks for these cases, Anthony. It's amazing how much resistance I get
(when representing tenants) when I make it clear in the lease that
acceleration will not be available if landlord elects termination.
Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick, LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney at slk-law.com
http://www.slk-law.com/
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-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J.
Horky
Sent: Thursday, February 09, 2012 12:19 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent
thruwhat date
The attached cases discuss when the remedy of accelerated rent is
available. My experience was that our judgment (for accelerated rent)
contained a reservation of jurisdiction to reduce the amount of the
judgment based upon rents received by the landlord in re-renting the
premises. If the landlord terminates the lease, then it is not entitled
to accelerated rent. If the landlord takes possession for the account
of the tenant or stands by and does nothing, then the landlord can
recover a judgment for accelerated rent (provided the lease provides
such a remedy). If the landlord takes possession on account of the
tenant, I believe an a good faith obligation arises to mitigate damages
by re-letting. In that regard, the tenant would also be entitled to an
accounting and reduction of the judgment amount since a landlord cannot
double recover.
Regards,
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.com
This message and the documents attached to it, if any, are intended only
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any, destroy any hard copies you may have created and notify me
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-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Thursday, February 09, 2012 11:34 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated
Rentthru what date
Here's the follow up.
Our judgments include the present value of the full accelerated
balance, with provision for future reduction for money actually received
post-judgment from a new tenant. However:
* I've heard judges opine that once the premises are re-let, the
Plaintiff's recovery is cut off even if the new rate is lower or the
expiration date of the new lease is earlier.
* Others don't argue for a cut-off, but if the premises have been
re-let before the judgment is entered, they want to reduce the award by
the present value of the rent that the Landlord hopes to receive over
the life of the new lease.
* In one case, since the Premises had been re-rented by the time I
won my Summary Judgment, the judge tried to limit my award to rent that
came due before the start of the new, low rate, shorter term lease. He
ended up awarding me the full accelerated balance, with provision for
credit for rent actually received, but then required quarterly
rent-receipt reports to the defendant!
I wonder what experiences you have had.
Jeff
Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd., Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax: 954-962-3560
Email: JMazor at Mazor.com
-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Neil B.
Shoter
Sent: Thursday, February 09, 2012 11:07 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated
Rentthru what date
Yes, it would seem based on Anthony's earlier email about using an
accounting expert at trial to determine the PV calculation that you can
either negotiate the rate in the lease or leave it to the court to work
out a rate.
http://www.shutts.com/shutts100.jpg
Neil B. Shoter
Partner / LEED Accredited Professional
________________________________
Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401
Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail
<mailto:NShoter at shutts.com> | Biography
<http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card
<http://www.shutts.com/vcard-181.vcf> | Website <http://www.shutts.com>
From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Arthur J.
Menor
Sent: Thursday, February 09, 2012 10:52 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated
Rentthru what date
An issue that often gets overlooked in lease negotiations is the
discount rate to be specifying in the acceleration clause. The lower
the rate the smaller the reduction for present value and the higher rate
the greater the reduction. In other words, the amount of the
accelerated rent damages will be greater if a lower discount rate is
chosen. Therefore, when representing landlords our lease form states as
follows:
If Tenant defaults, in addition to all remedies provided by law,
Landlord may declare the entire balance of all forms of Rent due under
this Lease for the remainder of the Lease Term to be forthwith due and
payable and may collect the then present value of the Rents (calculated
using a discount rate equal to the discount rate of the branch of the
Federal Reserve Bank closest to the Premises in effect as of the date of
the default).
Of course, if you are representing a tenant you would want to try for a
higher discount rate such as a prime rate.
From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Haney,
Gregory
Sent: Thursday, February 09, 2012 10:30 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated
Rentthru what date
Absolutely agree. When representing tenants I usually tack a NPV
provision (at around 6%) onto the acceleration clause, but now I'll have
to rethink trying to peg it, especially on longer term leases.
Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick, LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney at slk-law.com
www.slk-law.com <http://www.slk-law.com/>
________________________________
IRS Circular 230 Notice: We are required to advise you no person or
entity may use any tax advice in this communication or any attachment to
(i) avoid any penalty under federal tax law or (ii) promote, market or
recommend any purchase, investment or other action.
Confidentiality Statement: This electronic message contains information
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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Neil B.
Shoter
Sent: Thursday, February 09, 2012 10:22 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated
Rentthru what date
Thanks Anthony. This has been instructive.
http://www.shutts.com/shutts100.jpg
Neil B. Shoter
Partner / LEED Accredited Professional
________________________________
Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401
Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail
<mailto:NShoter at shutts.com> | Biography
<http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card
<http://www.shutts.com/vcard-181.vcf> | Website <http://www.shutts.com>
From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J.
Horky
Sent: Thursday, February 09, 2012 10:16 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent
thru what date
Recovery of accelerated rent is recovery of future economic losses. I
do not have a Florida Supreme Court case directly on point, but I have
seen a number of DCA opinions stating that recovery of accelerated rent
must be reduced to present day value. See Vibrant Video, Inc. v. Dixie
Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int'l, Inc. v.
Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury
Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80
So.2d 662, 668 (Fla. 1955)("...present compensation of future pain is
merely one of the subjective elements of the problem, and is not a
process of mathematical calculation of preset value, such as must be
applied to periodic future pecuniary losses); Quintero-Chadid Corp v,
Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant
Video held that a landlord's future monetary losses had to be reduced to
present value).
Regards,
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.com
This message and the documents attached to it, if any, are intended only
for the use of the addressee and may contain information that is
attorney-client privileged or confidential, and/or may contain attorney
work product. If you are not the intended recipient, you are hereby
notified that any dissemination of this communication is strictly
prohibited. If you have received this communication in error, please
delete all electronic copies of this message and its attachments, if
any, destroy any hard copies you may have created and notify me
immediately at: ahorky at horkylaw.com.
-------------------------------------------------------
Tax Advice Disclosure: To ensure compliance with requirements imposed by
the IRS under Circular 230, we inform you that any U.S. federal tax
advice contained in this communication (including any attachments),
unless otherwise specifically stated, was not intended or written to be
used, and cannot be used, for the purpose of (1) avoiding penalties
under the Internal Revenue Code or (2) promoting, marketing or
recommending to another party any matters addressed herein.
From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Neil B.
Shoter
Sent: Thursday, February 09, 2012 9:37 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent
thru what date
While I have not researched this, the question of whether accelerated
rents "must" be discounted to present value if such is not stated in the
lease arises from time to time, and I understand that judges do discount
the amount to PV - BUT, is the discounting accelerated rents to PV a
"mandatory" or uniform practice across courts in Florida or only
followed in certain jurisdictions??
This is useful in cases where a landlord refuses to allow mention in the
lease of discounting to PV.
http://www.shutts.com/shutts100.jpg
Neil B. Shoter
Partner / LEED Accredited Professional
________________________________
Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mail <mailto:NShoter at shutts.com> | Biography
<http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card
<http://www.shutts.com/vcard-181.vcf> | Website <http://www.shutts.com>
From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Manuel
Farach
Sent: Wednesday, February 08, 2012 5:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent
thru what date
I think the court sets what it believes to be an appropriate present
value as applied to each case; I'm not aware of a case that gives a
certain percentage.
As to question two, the answer is yes. I've filed partial satisfactions
of the judgment once payments were made
Good luck!
Manny
________________________________
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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Wednesday, February 08, 2012 5:29 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru
what date
I've researched this to death and haven't found a direct answer. Maybe
you can help?
Question One: If not provided for in the Lease, what discount rate do
you use to calculate the Present Value of sums that come due under a
lease?
Question Two: IF we sue for damages under an "Original Lease", we are
entitled to a judgment equal to:
(i) past due rent, repair expense and other charges; plus,
(ii) landlord's attorneys' fees and costs; plus,
(iii) "accelerated balance" due under the lease, less a credit for "the
amount received upon reletting the premises", Boulevard Shoppes, A.B. v.
Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to
present value.
Thanks,
Jeff Mazor
Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd., Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax: 954-962-3560
Email: JMazor at Mazor.com
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